The Iowa Supreme Court recently entered a ruling affirming the judgment of a Polk County Juvenile Court and vacating a Court of Appeals Ruling. In the Interest of A.B. & S.B. is a case involving a termination of a father’s parental rights to two children pursuant to Iowa Code section 232.116(1)d), (g), (h), and (l) (2011).
Father’s History of Drug Abuse
The father of the two children, Silverio, has a chronic substance abuse problem. He also has been the subject of six founded reports of child abuse and has a lengthy criminal conviction history involving assault and possession of controlled substances. Silverio has also previously had his parental rights terminated as to another child. Nelda is the mother of the children. She and Silverio were never married and are no longer together, their relationship filled with drugs and domestic violence.
The children involved S.B., A.B. (as well as their younger half brother, D.G.) came to the attention of DHS in November of 2010. There were concerns about their medical care, or more accurately the lack thereof, as well as housing instability, illegal drug use in the home and truancy issues. DHS offered services to Nelda, who the children were living with.
Eventually, the children were removed from Nelda’s care and were living with Silverio, who then was arrested on drug charges. On the day of his arrest, the juvenile court removed the children and placed them in foster care. Nelda was subsequently arrested for identity theft. The children were determined to be Children in Need of Assistance (CINA) pursuant to Iowa Code Sections 232.2(6)(c)(2) and (n) (2011). After hair stat testing, unfortunately Nelda and all three children tested positive for methamphetamine. Silverio shaved his head and was unable to provide a sample for the test.
DHS Provides Services to Facilitate Reunification
As in other Termination of Parental Rights cases, DHS provided services for the children and Nelda to facilitate reunification. Silverio continued to exhibit destructive behavior, getting arrested for domestic abuse assault and testing positive for meth in a urine test. However, after this arrest Silverio began to make progress by attending classes, family team meetings, and testing negative for illegal drugs. He completed drug treatment and a mental health evaluation. Unfortunately, Nelda did not show such progress and remained in jail.
Silverio obtained employment, resumed regular visitation with the children, attended therapy sessions, and communicated with the daycare center. DHS remained concerned, however, stating that Silverio had problems with lying and a lack of insight into his domestic abuse, anger and drug issues. The State recommended termination of Silverio’s parental rights. After testifying and requesting more time to obtain custody, Silverio tested positive for methamphetamine. The juvenile court terminated Silverio’s (and Nelda’s) parental rights. Silverio’s parental rights were terminated pursuant to Iowa Code section 232.116(1)(d), (g), (h), and (l):
232.116 GROUNDS FOR TERMINATION.
- 1. Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:
- d. The court finds that both of the following have occurred:
- (1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.
- (2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
- g. The court finds that all of the following have occurred:
- (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
- (2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family.
- (3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation.
- (4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.
- h. The court finds that all of the following have occurred:
- (1) The child is three years of age or younger.
- (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
- (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
- (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.
- l. The court finds that all of the following have occurred:
- (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102.
- (2) The parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.
- (3) There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.
Appeal of Termination of Parental Rights
Silverio appealed this decision, arguing the juvenile court violated his due process rights when it ordered a drug test at the end of the termination trial and then relied on those results, that the State had failed to establish a statutory ground for termination by clear and convincing evidence, and that termination of Silverio’s parental rights was not in the children’s best interest. The court of appeals reversed because, although they ruled that Silverio had not preserve error on his objection to the drug test, they were “bothered” by the results and the accuracy of the test. They also felt that termination was not in the children’s best interests.
Iowa Supreme Court Analysis of Termination of Parental Rights Proceedings
The court reviews proceedings to terminate parental rights de novo, meaning they give weight to the juvenile court’s findings of fact, but are not bound by them.
The Iowa Supreme Court disagreed with the court of appeal’s finding that the record lacked clear and convincing evidence to warrant termination of Silverio’s parental rights. The Court listed several points that led to their conclusion:
- Fingernail Drug Test
- The general rule that appellate argument must first be raised in the trial court applies to CINA and termination of parental rights cases. In re Interest of K.C., 660 N.W.2d 29, 38 (Iowa 2003).
- Silverio was not ordered to take the fingernail drug test, he stated that he was perfectly willing to take the test and then reported voluntarily to do so.
- The test report has no indication of unreliability on its face. Iowa R. Evid. 5.901(a).
- The evidence was admitted without objection.
- Grounds for Termination
- The Court can base affirmation of the juvenile court’s order on any one ground they find is supported by the record. In re Interest of D.W., 791 N.W.2d 703, 707 (Iowa 2010).
- The Court finds that termination is proper under Iowa Code Section 232.116(1)(d).
- The juvenile court’s finding is based on clear and convincing evidence.
- The juvenile court found that Silverio denied his drug use in the face of credible evidence to the contrary. His drug problem was not resolved and therefore was not in any state to provide a safe and stable home for the children.
- Best Interests of the Children
- After statutory grounds for termination are established, the Court must still determine whether termination is in the children’s best interests. Iowa Code section 232.116(2).
- The Court gives “primary consideration” to the child’s safety, long term nurturing and growth of the child, and physical, mental and emotional needs of the child. Iowa Code section 232.116(2).
- The children were excelling in foster care and they repeatedly told their care providers they were happy living there. Truancy problems were no longer an issue, the children were doing well in school and the foster parents had indicated a desire to adopt them.
- Although Silverio had taken advantage of DHS services, he was still involved in drug and domestic violence related arrests. Also, he refused to acknowledge any illegal drug use despite several positive drug tests.
- After statutory grounds for termination are established, the Court must still determine whether termination is in the children’s best interests. Iowa Code section 232.116(2).
Because of these reasons, the Iowa Supreme Court reversed the court of appeals and affirmed the juvenile court ruling terminating Silverio’s parental rights.
Iowa Supreme Court Issues Opinion Regarding a Paternity Fraud Cause of Action
The Iowa Supreme Court issued an opinion on Friday, June 1, 2012 regarding a case appealed from the Iowa district court in Grundy County. The case, Dier v. Peters focuses on the question of whether there should be a separate cause of action, separate from common law fraud, for Paternity Fraud.
Dier v. Peters
Cassandra Jo Peters allegedly informed Joseph O. Dier that he was the father of her child, O.D., born February 10, 2009. Dier claims that as a result of this information he made voluntary financial contributions to Peters intended to be used for the care of Peters and the child. According to Dier, Peters knew that O.D. was not Dier’s child, but still accepted the financial contributions.
At some point after the child was born, Dier filed an application in district court to obtain custody of O.D. As a part of that case, there was a child custody evaluation completed. Peters became afraid that she may lose custody of O.D. and requested that a paternity test be performed. Two paternity tests later, and Dier was excluded from being O.D.’s biological father. As a result, on August 2, 2011, Dier filed a petition seeking reimbursement of the financial contributions he had made to Peters throughout O.D.’s life.
Peters moved to dismiss the action for failure to state a cause of action because Iowa does not recognize a cause of action for Paternity Fraud. Of course Dier resisted this motion claiming that Peters’ actions were tantamount to fraud at common law.
The Court reviewed the appeal for errors at law, meaning they accepted the facts as found by the district court.
In her motion to dismiss, Peters is correct that Iowa, along with many other states, does not recognize a specific Paternity Fraud claim for relief. In this case, the Iowa Supreme Court rules on whether a putative father can bring a claim for damages as a result of fraud by a biological mother either by a claim of Paternity Fraud or common law fraud.
Can a Putative Father Recoup Past Paid Support?
This case is different from the majority of paternity fraud type cases where a father tries to reclaim court-ordered support. Here, the financial support provided by Dier was completely voluntary and not ordered by the court. The Iowa Supreme Court has held on numerous occasions that a father may not recover support that was paid as a result of a court order. Iowa Code 600B.41A(4) states:
4. If the court finds that the establishment of paternity is overcome, in accordance with all of the conditions prescribed, the court shall enter an order which provides all of the following:
a. That the established father is relieved of any and all future support obligations owed on behalf of the child from the date that the order determining that the established father is not the biological father is filed.
b. That any unpaid support due prior to the date the order determining that the established father is not the biological father is filed, is satisfied.
So, if the court should find that paternity has been overcome, the putative father cannot be reimbursed for previous payments made by court order, however, any previous unpaid support and any future support obligations are seen as satisfied.
Common Law Fraud
The present case is not controlled by this statute however, so the Court bases its decision on whether Dier’s claim should be dismissed on whether it fits into the traditional elements of common law fraud. The Court finds that Dier’s claim does in fact fit into the framework of common law fraud. The elements as well as the Court’s analysis are as follows:
- 1 and 2: False Representation – The Court finds that Dier does in fact allege that Peters represented to him that he was the father and that the two subsequent paternity tests show that representation to be false.
- 3: Materiality – the misrepresentation is material if it substantially affects the interests of the party alleged to be defrauded; if it induces a reasonable person to react. The Court states that Dier reacted as a reasonable person would if they were informed they were the father of a child. The misrepresentation caused him to contribute financially to O.D. and Peter’s lives.
- 4: Knowledge of falsity – Dier would need to show that Peters had actual knowledge that the representation she made to Dier was false. Dier alleges this to be the case in his pleadings.
- 5: Intent to deceive – The Court finds that Dier’s allegations would survive a motion to dismiss because he indicates that not only did Peters know he was not the biological father of O.D., but that she used that misrepresentation to secure money from him.
- 6: Justifiable Reliance – A plaintiff is not allowed to blindly rely on any representation made to him or her. The Court acknowledges that a paternity test could have shown from the beginning that Dier was not the father, however, is not willing to hold that a putative father is never allowed to rely on the biological mother’s word that they are indeed the father. Therefore, Dier’s assertions are enough to survive the pleading stage.
- 7: Proximate Cause – the allegations that Dier has made that he spent the money based on the misrepresentation are enough to survive a motion to dismiss.
- 8: Damages – Dier needs to make an ascertainable showing of damages or injury to satisfy the elements of a common law fraud claim. He does show out of pocket expenses made as a result of the misrepresentation. The Court does rule however that he may not recover the attorney fees incurred during the custody case litigation.
The Court states that Dier does not attempt to create a new cause of action in his claim for relief, but in fact, does make an allowable claim for relief under common law fraud.
Three Former Iowa Supreme Court Justices Honored by Kennedy Presidential Library
Former Iowa Supreme Court Chief Justice Marsha Ternus and former Justices David Baker and Michael Streit were awarded the 2012 John F. Kennedy Profiles in Courage award in Boston on Monday, May 7th. The Justices lost their seats on the court in a 2010 retention vote, that in any other political climate would have been considered routine. However, the Court’s unanimous decision in 2009′s Varnum v. Brien to allow same-sex marriage in Iowa proved to be unpopular with Iowa voters.
After the decision, special interest groups, such as The Iowa Family Leader , flooded the state with television ads and other negative publicity claiming the justices were “out of touch” and “activists” because of their decision in Varnum. As a result, Chief Justice Ternus, Justice David Baker, and Justice Michael Streit were all removed from the Iowa Supreme Court.
Thanks to these justices and the others they served with, who remain on the bench, same-sex marriage remains legal in the state of Iowa.
Iowa Supreme Court Rules on Post-Secondary Education Subsidy
When a Parent will be Required to Pay for a Portion of their Child’s College Education
On April 27, 2012 the Iowa Supreme Court entered a ruling regarding the parental requirement to pay a portion of children’s post-secondary education as outlined in Iowa Code Section 598.21F(2011). The statute provides that a court may order a “post-secondary education subsidy” if good cause is shown. The court will consider the age of the child, the child’s financial resources, whether the child is self-sustaining, and the financial condition of each parent in determining whether there is good cause to require the parents to pay for any of the child’s college education.
How Much will a Parent be Required to Pay?
If good cause is found to exist, the court will base the cost of the child’s college education on the cost for an in-state university where the child would receive a four year undergraduate degree. The court will then consider how much the child should reasonably be expected to contribute taking scholarships, financial aid, loans, and the child’s ability to work into consideration. After all of these considerations, the statute provides that neither parent should be required to pay more than one third of the entire cost of the child’s college education.
When Doesn’t a Parent have to Pay?
The post-secondary education subsidy will NOT be required of a parent that has been repudiated by the child. This means that if the child has publicly disowned the parent or refused to acknowledge the parent, there will be no requirement for that parent to pay for any of the child’s college costs. Also, if the child receives the post-secondary education subsidy, they will be required to report their grades to their parents ten days within receiving them and to maintain a grade point average above the median range.
Recent Iowa Supreme Court Decision
In the case recently ruled upon by the Iowa Supreme Court, the mother and father separated when their only daughter was an infant. The mother remarried a man who had a high income and enjoyed a comfortable lifestyle. The father remarried as well, had three additional children and then divorced for a second time. He earned a fairly good income, however unlike the mother, he had a high amount of debt and a very small net worth.
In its decision, the Court found there was good cause for the post-secondary education requirement because the daughter was 19 years old, doing well in college, and she was working part-time and contributing financially to her own college education, but not able to support herself entirely on her own. The Court considered the financial outlook of the father and noted that the same amount of sacrifice required of a parent in the support of a minor child is NOT required in the payment of a post-secondary education subsidy. They find that the father does not lead an extravagant lifestyle, and while he does make a good income, he should not be required to pay as high of a subsidy as determined by the Court of Appeals.
The Court affirmed the finding of good cause in requiring the post-secondary education subsidy, however reduced the amount the father was required to pay significantly.